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Sanity in sentencing



Published: Mon, January 17, 2005 @ 12:00 a.m.



Baltimore Sun: In the federal court system, few issues have been more contentious than the sentencing guidelines that Congress passed in the mid-1980s, ostensibly to make sure that criminal defendants received about the same time for the same crime.

But federal judges have long complained that the guidelines robbed them of their discretion in weighing different circumstances that might pertain to similar crimes. And defendants and their attorneys complained of onerous sentences that could not be altered. Now, the U.S. Supreme Court has restored some measure of sanity into the process. While the decision Wednesday is complex, the overall result is welcome.

The guidelines, which went into effect in 1987, were meant to address wide disparities in sentencing, including among different racial and ethnic groups. They also aimed to make sentences more transparent and uniform. But as time passed, Congress kept adding layers to the system, allowing sentences to become more excessive and even Draconian. As a practical matter, power shifted from judges, who are meant to be neutral, to prosecutors, who could virtually determine the outcome of a case by the charges they set. The entire process became more and more convoluted as well, making the sentencing guidelines resemble the tax code.

Case at hand

And the results were still unfair. That was ultimately the court's view in the cases decided last week. Freddie J. Booker was convicted by a Madison, Wis., jury of possessing to distribute more than 50 grams of crack cocaine. After considering his criminal history and evidence at a post-trial hearing that he had actually distributed more than 500 grams, the judge increased what would have been a sentence of nearly 22 years, based on the jury's findings, to 30 years. Similarly, Ducan Fanfan was convicted by a jury in Portland, Maine, of distributing 500 grams of cocaine. Based on the jury's findings, his maximum sentence should have been 61/2 years in prison. When the government pushed for a longer sentence, based on evidence at a post-trial hearing that he was responsible for distributing even more drugs and that he was an organizer of criminal activity, the judge refused.

That the guidelines allowed judges to increase sentences based on evidence that the jury did not consider, and under a standard -- preponderance of the evidence -- that was less rigorous than the jury's finding beyond a reasonable doubt, were key reasons why a 5-4 majority of the Supreme Court found the guidelines unconstitutional. When it came to fixing the problem, another 5-4 majority ruled that the guidelines should now be considered "effectively advisory" instead of mandatory.

This is a welcome and long-overdue development, suggesting that judges can still defer to the guidelines without being handcuffed by them.




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